SITAL PARSHAD Vs. KISHORI LAL

JUDGEMENT

(1.) This is an appeal on a certificate granted by the High Court of Punjab and raises a question of law on which there is some different of opinion amongest the High Courts. Brief facts necessary for present purpose are these. The respondent obtained a preliminary decree in a mortgage suit against the appellants on March 13, 1952. The decree was for sale of the mortgaged property . As the prelimnary decree did not allow interest to the respondent from the date of the suit to the date of the preliminary decree, he filed an appeal to the High Court in that connection. The appellants (Judgment-debtors) were apparently content with the preliminary decree for they filed no appeal. As there was no stay order passed by the High court, for, the judgment-detors had not appealed, the respondent applied for making the preliminary decree final and on August 16, 1954 the preliminary decree was made final under O. XXXIV R. 5 of Code of Civil Procedure On August 18, 1954, the respondent took out execution of the final decree . On December 17, 1956, while the execution proceedings were pending, the respondent decreeholder's appeal in the High Court was allowed and the High Court allowed interest to the respondent. On April 2, 1960, the appellants objected under S. 47 of the Code of Civil Procedure that as no final decree had been prayed for and passed after the judgment of the High Court in appeal and as more than three year had passed since the judgment of the High Court, there was no final decree to be executed, as the final decree which had been prepared on August 16, 1954 on the basis of which execution was going on must be held to have force and effect after the judgment of the High Court making a variance in the preliminary decree. The respondent, however, contended that it was not necessary to apply for a fresh final decree after the judgment of the High Court in appeal and that the final decreee already passed on August 16, 1954 remained good and was executable.

(2.) The executing Court rejected the contention of the appellants. Thereupon the appellants went in appeal to the High Court and this appeal was dismissed by a learned Single Judge. Then the appellants came in Letters Patent Appeal which has also been dismissed. As, however, there was some difference of opinion amongst the High Courts on the question of law raised in the appeal, a certificate was granted by the High Court and that is how the matter has come before us.

(3.) We may indicate the two main lines of decisions in this matter. The first which is in favour of the appellants is represented by Ram Nath vs. Deoki Nand Krishna, ILR (1947) All 40. In that case a preliminary decree was passed in a suit on a mortgage. Pending an appeal form the preliminary decree, the final decree was passed. Thereafter the appeal was decided and the preliminary decree was modified and a fresh preliminary decree was directed to be prepared which was done. The decree-holder, however, applied for the execution of the final decree which had been prepared earlier and did not apply either for amendment of that final decree so as to bring it in conformity with the decree of the appeal Court or for preparation of a fresh final decree. Later however, more than tree years after the judgment in appeal, the decree-holder applied for amending the final decree so as to bring it in accord with the decree passed by the appeal Court. The High Court held that as the preliminary decree passed by the trial Court had been varied by the appeal Court, the final decree which had already been prepared fell to the ground and could not be executed until it was made consistent with the preliminary decree passed by the appellate Court or a fresh final decree was prepared in accordance with it. Further as the application for amendment was made more than three years after the judgment of the appeal Court it was barred by Art. 181of the Limitation Act.